Kumar v. Canada (Minister of National Revenue), 2006 FC 1470

Date: 20061207

Docket: T-1708-02

Citation: 2006 FC 1470

BETWEEN:

ASHOK KUMAR

Plaintiff

and

MINISTER OF NATIONAL REVENUE

Defendant

REASONS FOR ORDER

(Delivered from the bench in Toronto, Ontario,
 on December 6, 2006)

HUGESSEN J.

[1]               I am going to dismiss this motion for summary judgment brought by the Crown defendant, seeking to dismiss in its entirety, the plaintiff’s action which is a statutory appeal brought under section 135 of the Customs Act.

[2]               Because, in my view, there must be a trial, I think I should comment as little as possible on the evidence that is before me. I shall limit myself to saying that, in my view, there is evidence upon which the Court at trial might find that there had been a serious breach of the most basic rules of fairness and natural justice by the Minister’s representative who was responsible for the decision which is under appeal. In particular, there is evidence which might show that there was a serious breach of the rule of audi alteram partem.

[3]               Whether that breach may result in a finding that the decision under appeal cannot be sustained is not a matter that I should decide at this time. It is enough that I say that the evidence is such that the Court might conclude on that evidence that the appeal should be allowed because of fatal flaws in the procedure followed leading to the decision.

[4]               I do not accept the submission by the moving party that in an appeal under section 135 the Court may not look at serious and vitiating flaws in the decision-making process. In particular, I do not accept that the Court is precluded from looking at serious questions of fairness and natural justice in that process.

[5]               The fact that the Minister’s decision is not subject to judicial review because of a privative clause and the fact that it is subject to a statutory appeal do not, in my view, give rise to the conclusion that the Court may only look at whether or not there has been a contravention of the Act and may not look at procedural flaws in the decision-making process and I do not read any of the cases cited as going that far.  It would be astonishing, in my view, if they did.

[6]               In the result I am going to dismiss the motion. I would normally in accordance with what I think is the proper practice make an order for costs in the plaintiff’s favour, however, I am not going to make any order as to costs in the present case. That is in part because the plaintiff himself may be found in the final analysis to have committed, what appears to me to be an industrial level of smuggling of jewellery into Canada, but also because in two respects the plaintiff himself has committed breaches of the Rules. The first is in respect of the affidavit filed in response to the summary judgment motion which is an affidavit of a solicitor and to the extent that that affidavit simply produces non-contentious material, such as transcripts and documents which have previously been produced in the record, it is not objectionable, but, the affidavit also goes to matters of opinion on the solicitor’s part which I have, of course, disregarded but which are in themselves improper. The other matter in which the plaintiff has not respected the Rules of this Court are in the length of the memorandum filed in response to the summary judgment motion. No leave was sought or obtained to file a memorandum of more than 30 pages and counsel must learn that the Rules are to be taken seriously, especially that Rule.

[7]               So an order will go dismissing the motion for summary judgment. I do not see that there is any point, to my allowing the motion in part to strike out certain conclusions of the plaintiff statement of claim some of which were in any event conceded during argument and which, in my view, if they remain in the statement of claim by the time the case goes to trial, if it ever does, counsel should be able to sort out between them, if necessary, add a pre-trial conference.

[8]               An order will go to that effect.

“James K. Hugessen”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-1708-02

STYLE OF CAUSE:                          ASHOK KUMAR v. MINISTER OF NATIONAL REVENUE

PLACE OF HEARING:                    TORONTO, ONTARIO

DATE OF HEARING:                      DECEMBER 6, 2006

REASONS FOR ORDER:               HUGESSEN J.

DATED:                                             DECEMBER 7, 2006

APPEARANCES:

SOLICITORS OF RECORD: